Choice Joyce: “Conscientious Objection” in Reproductive Health Care is Immoral and Should Be Abolished

Choice Joyce

Essays from a pro-choice feminist liberal skeptic infidel activist (and animal lover)

Sunday, October 18, 2015

“Conscientious Objection” in Reproductive Health Care is Immoral and Should Be Abolished

Updated July 2, 2018

The topic of “conscientious objection” (CO) in reproductive health care is a fascinating one that has given me much food for thought. My position on CO is fairly well-developed and I’ve written or co-authored a number of pieces about it. In this piece, I discuss or expand upon a few aspects that have come up in informal discussions with researchers and academics, mostly around philosophical and epistemological issues. 

First, my position on CO

“Conscientious objection” is the refusal by a health care professional (HCP) to provide a legal medical service or treatment for which they would normally be responsible, based on their objection to the treatment for personal or religious reasons.

The majority of so-called “conscientious objection” is exercised today in reproductive health care and is not really about protecting the right to conscience. It’s about a person in a privileged position of authority (there by choice) imposing their personal beliefs on a vulnerable other in a dependent position (not there by choice). That is, physicians have a monopoly on the practice of medicine, and they voluntarily entered a profession that fulfills a public trust. They know they have obligations to provide care to patients without discrimination, and that patients are completely reliant on them for essential health care and can’t go elsewhere. These factors make the exercise of CO in reproductive health care a violation of medical ethics and an abuse of HCPs' position of trust and authority. It is also discrimination because it mostly affects women and the LGBTQ community.

The entire argument for CO in reproductive health care fails once it’s understood that the “conscience” excuse is a subterfuge that justifies class privilege and the “right” to control others. “Conscientious objection” is a propaganda term, not much different than “pro-life” in the abortion debate. CO is actually “Dishonourable Disobedience." It’s really unfortunate that the medical and human rights communities have been bamboozled by the CO term to the extent that allowing CO in reproductive health care is now considered a “consensus” position. They’ve accepted an anti-choice term as the starting point, which is the reason things are in such a mess today in terms of rampant CO abuse around the world and the near-impossibility of regulating and controlling it.

For further information on my position, please check out my previously published articles on CO, summarized and linked at the bottom of this article. (Most are co-authored with my colleague Dr. Christian Fiala of Vienna, Austria.)

Is CO ever justifiable in health care?

There are some valid cases where an HCP may conscientiously refuse to provide a legal treatment that is requested by the patient, but this should be done in the context of honouring their professional obligations and medical ethics. Doctors can refuse treatment on the principle of “beneficence” or “non-maleficence” to ensure the patient is helped or at least not harmed. This only applies in limited circumstances, such as a patient who requests a risky experimental treatment, or a mentally disturbed patient who wants an unnecessary procedure such as an amputation.

We (Dr. Fiala and I) also support refusal by HCPs if they are asked to perform illegal or quasi-legal activities that injure people and violate their rights, such as torture or genital mutilation of children (including circumcision of male infants, which likely has no health benefits but has plenty of harms). Such practices are not legitimate medical treatments and are not requested or needed by the patient; therefore, ethical HCPs should conscientiously refuse to participate in them.

However, these types of refusals are not grounded in the individual personal or religious beliefs of HCPs, so they do not actually qualify as CO as we have defined it.  Virtually all 'personal' CO occurs in reproductive health care (or medical assistance in dying) and does not stem from professional ethics.

This means that  personal conscientious objection to a treatment that a patient requests has no valid place anywhere in health care. Treatment decisions by HCPs must be patient-directed, not self-directed, and must be based on evidence, medical ethics, and professional obligations. If the treatment is legal, within the HCP’s qualifications, requested by a mentally healthy patient, and primarily beneficial (which abortion is), there is simply no excuse to refuse.

Downie and Shaw give an example of a Jewish doctor refusing to operate on a patient with a swastika tattoo. Another example is an abortion provider who refuses to do an abortion on a patient who calls him a murderer and treats him with contempt. It may be easy to sympathize with these doctors' refusals, but they are still not true examples of CO, because where does it end? Individual doctors may have personal moral misgivings on a lot of different things, but in the end, doctors cannot morally judge others and abuse their position of trust and authority by citing CO. Their responsibility is to treat.

What about physician-assisted dying?  Canada's Supreme Court struck down the criminal laws prohibiting this practice in 2015. A fight has emerged, with Catholic hospitals refusing to comply with the requests of terminally-ill patients to end their lives, even to provide them with information. Instead, these hospitals have taken to transferring these patients to another hospital. Unfortunately, this inflicts grave psychological and physical harm on patients who are already in a frail and weakened condition. Public institutions like hospitals should of course have no right to CO, since this can only be an individual right. It also violates the conscience rights of HCPs working at Catholic hospitals who want to provide the objected-to service. It's especially frightening that Catholic hospitals often have a near-monopoly on palliative care, such as in Alberta. In my opinion, special legislation may be needed to force Catholic hospitals to provide assisted-dying services – as well as abortion care and other medically necessary care such as sterilization services. If they refuse, provincial governments should step in and find a legal way to take control of these hospitals and secularize them. It's a radical move, but should be justifiable on the basis that Catholic hospitals are publicly funded, yet are systematically violating patients' rights and dignity and endangering their lives. Further, it's not realistic to defund or close these hospitals, as they are often the only ones in a particular community.

Coming back to why CO is not justifiable in reproductive health care, another reason is because it tends to become too broadly used, with providers citing CO for reasons other than a supposed moral objection, such as stigma, distaste, fear, personal preference, money, etc. I say “supposed” moral objection because the evidence is overwhelming and conclusive that safe legal abortion saves women’s lives and benefits their health and that of their families. The vital public health interests in keeping abortion accessible (as well as contraception) decisively trump any supposed moral concern for fetuses. Actually, I think it can be shown quite persuasively, by citing evidence on anti-choice policies, laws, etc., that anti-choice beliefs in general are not motivated by the desire to “save babies” but by the desire to control women’s sexuality and childbearing role. So treatment refusals in reproductive health care really do come down to harmful gender discrimination (see more below), and are not true CO because they’re based on a false ethical framework. People often assume we should respect the conscience of objectors, but why? I personally have zero respect for their beliefs against abortion because they are illegitimate and harmful. Their "conscience" denies respect to women, violates their rights, and risks their health and lives – all of which is demonstrable, not subjective.

Most anti-choice HCPs would claim they’re motivated by “respect for unborn life” or whatever, but that raises the issue of how we can’t trust peoples’ stated justifications anyway, since one’s personal or religious beliefs cannot be verified or falsified on a rational basis, including how genuinely such beliefs are held. It is also inappropriate and impossible for courts or governments to "decide" whether someone's religious beliefs are valid or sincere. Therefore, one reason that allowing CO is a bad idea is because it leaves us unable to challenge peoples’ justifications – we have to accept them at face value regardless of the harms they may cause to patients.

That said, many personal or religious beliefs are indeed empirically false or unethical in light of scientific evidence or accepted human rights standards (such as the inaccurate belief that some forms of contraception are abortifacients). Any justification of CO should therefore not rely on what individual HCPs claim, but instead on a broader social recognition of the benefits of the treatment in general and the harms of refusal (or perhaps vice versa in some cases). This means that true CO can happen only in unique individual cases as described above, or in cases where the patient would be harmed more with the treatment than without it, or at least not helped (the beneficence or non-maleficence principle).

Finally, on a practical basis, it may be acceptable to tolerate false CO in some limited and temporary circumstances. For example, a hospital may find it has only one objector amongst a larger group of doctors. Rather than fire or transfer the doctor, the hospital might decide to accommodate the objector if it can ensure that no-one is harmed or inconvenienced by it (except perhaps the objector). This does not mean that CO is 'okay' – it's still inherently wrong in principle and should not normally be tolerated. However, private and contingent decisions to accommodate CO on a case-by-case basis could be made by particular institutions, which also reflects the practical reality that things cannot be changed overnight. Indeed, my recommendations for ending CO (below) adopt a long-term, incremental approach, that "grandfathers" in existing objectors. 

Is CO in reproductive health care really discrimination?

Because the vast majority of CO takes place in sexual and reproductive health care, and because this care involves biological gender and sexual aspects that differently affect women, men, and LGBTQ communities in a way that’s not true for most other forms of health care, refusals of treatment constitute discrimination on the basis of sex/gender or sexual orientation. I believe that discriminatory treatment is by definition harmful, and can never be justified by evidence or ethics.

Similarly, HCPs cannot generally refuse to treat black people, gay people, obese people, smokers, injured drunk drivers, or other groups they may disapprove of, because that would be harmful and discriminatory (even if some such groups are not specifically protected under anti-discrimination laws).

Some might claim that discriminating by refusing to treat a class of persons is different than refusing to do a particular treatment like abortion – therefore, CO in reproductive health care is not discrimination. Or at least, the discrimination is an unintended byproduct of the objection to the treatment, and so is too indirect or removed to really be discrimination. However, when that treatment is something only women and some transgender people need, then it is indeed discrimination because it has a discriminatory effect.

The legal definition of discrimination in Canada is not about intention, but effect. The Supreme Court of Canada has defined it as (emphasis added): “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.”

It should also be clear that when objectors are not allowed to refuse treatment, they do not suffer discrimination themselves – they are prevented from discriminating against others. HCPs are free to hold and practice their beliefs in private, but their agreement and obligation to fulfill a public trust means they can’t bring their beliefs into their work and impose them onto patients (as per the principle of “public accommodation”).

Should patients’ rights be “balanced” with providers’ rights?

It’s sometimes implied by CO supporters (academics and doctors) that patients and doctors are on some kind of equal footing, so each bear some responsibility in cases of refusals and we should “balance” their rights. For example, the provider should refer appropriately while the patient is “responsible” for going to another practitioner. Or, the provider and patient have an equal obligation to be “respectful” of diverse views and values. (These examples come from a private email conversation I had in July 2014 with Dr. Owen Heisler, Assistant Registrar of the College of Physicians and Surgeons of Alberta.)

But this is absurd. Patients have an unquestioned right to health care and are in a dependent position with their doctor, so they bear zero responsibility for any supposed moral conflict or its consequences. And the patient’s values are irrelevant – they are there simply to obtain a required medical service, which might even conflict with their own values. The responsibility for CO is 100% on the objector, who should bear the burden of any refusals. Currently however, all or most of the burden falls on the patient, while the objector rarely has to answer for it and often even benefits from the refusal (e.g., by avoiding stigma, or freeing time for more lucrative health care). The harm to patients of allowing CO always outweighs any harm to doctors of disallowing CO – if there even is any.

Organizations and professionals that support CO often confidently state that providers have a right to conscience and patients have a right to health care. (For example, here.)  But which is it? These two things are entirely incompatible because when a provider refuses treatment, the patient has lost their right to health care, period. Giving doctors a blanket right to refuse treatment on questionable CO grounds contradicts the whole purpose of medicine – to care for patients. It usually also violates the fundamental values and policies of the medical organizations that espouse CO, with all their noble talk about physicians’ commitment to patient care and interests, evidence-based medicine, comprehensive care, and so on. But if you allow CO, health care is no longer comprehensive, it’s no longer based on science and evidence, it’s no longer in the patient’s best interests, and doctors are no longer committed to any of the above.

Can we really prohibit CO?

The solutions proposed by the organizations and professionals who want to allow CO, but who are nevertheless well aware of its systemic harms, seem (to me) to be clear evidence of the inherent unworkability and contradiction of allowing CO in the first place. The general objective in these proposals (such as those by Global Doctors for ChoiceFIGO, ACOG, and members of ESC) is to limit the injustice of CO as much as possible by requiring objectors to refer appropriately, impart accurate information on all treatment options, treat patients respectfully, and in urgent situations, provide the treatment they object to if no-one else is around to do it. The problem is that such concessions don’t work very well in practice because they assume that objectors will be rational and agree to compromise their stance against a particular treatment at some point in the process. But why should they, when they’ve already been given the right to practice “faith-based” medicine? It’s impossible to draw a line between that and evidence-based medicine, because they have nothing to do with each other. 

It is difficult for me to understand how medical groups and professionals can clearly see the many problems with CO in reproductive health care, but instead of recognizing that it is fatally flawed, they just want to put band-aids on the serious (often intractable) problems caused by CO, and continue to insist there is a provider’s right to refuse treatment on the supposed basis of conscience. Frankly, I don’t see any reason for this other than to protect the power and privilege of doctors over patients. But doctors are public servants, basically. They are no longer the paternalistic figures whom patients should just defer to when it comes to important life decisions.

I believe that a general ban on CO in reproductive health care is not only the right thing to do, but also would be simpler and much more doable than trying to accommodate and regulate CO on an ongoing basis. Empirically-based criteria could be developed that would be ethical and fair to all parties, with no need to navigate subjective aspects such as trying to decide if an objector’s reasons are valid. It also does not involve “forcing” doctors to do abortions, which is a red herring fear about banning CO. Below is my suggested protocol for carrying it out on an incremental basis:

  1. Disqualify objectors from entering certain disciplines at the medical school level (e.g., all Obstetrics/Gynecology applicants must be willing to provide abortions; all Ob/Gyn and family medicine applicants must be willing to prescribe birth control).
  2. Offer guidance to objecting students in terms of acceptable disciplines or specialties where their objection won’t be a problem. 
  3. At medical schools, provide compulsory training in contraception provision for all students in family medicine, and compulsory training in abortion techniques for all those in Ob/Gyn (and other things like vasectomies etc.).
  4. Include the requirement to participate in abortion in job descriptions at the point of hiring. 
  5. Require existing objectors to enroll in a Continuing Education course or Values Clarification workshop on the need for reproductive health care services (especially abortion) and why women request abortions. Expose them to patients requesting the services, educate them on the negative effects of CO on patients, and provide a clear understanding of their fiduciary duty to patients. This should decrease the number of objectors because many are arguably just misinformed, uncertain, or using the excuse of CO for the wrong reasons. 
  6. For those who continue to object, assist them and incentivize them to move to other disciplines or areas where their objection won’t be a problem. 
  7. Increase the burden on those who want to stay and continue objecting, with the goal of encouraging them to eventually transfer or quit. These measures would become mostly unnecessary over time as CO becomes rarer. For example, medical organizations could: 
a.      Require all remaining objectors to register so they can be monitored.
b.     Require all objectors to file a report every time they refuse services based on their moral or religious objections.
c.      Investigate any inadequate or problematic reports.
d.     Randomly conduct regular audits on objecting doctors.
e.      Discipline those who violate the policy, and develop a more robust disciplinary policy.
f.      Hold objectors financially liable for any harms done to patients.
g.     Prohibit existing objectors from working alone, especially in small communities where they are the only physician.
h.     Allow employers to prioritize hiring of non-objecting physicians.
i.       Pay objecting physicians less (a cut in wages for employed doctors, or a percent reduction in Medicare fees)
8.   To improve public accountability and transparency: 
j.       Medical organizations could make the complaint process easier for patients, including preventing the doctor from learning or discerning the complainer’s identity.
k.     Medical organizations could engage in public advocacy about the right to complain when doctors refuse care or referrals – e.g., create a brochure for doctors’ offices, publish an op-ed, write a position paper for their website, keep a permanent prominent link to it on their home page, etc.
l.       Governments could regulate public health systems to guarantee abortion provision, provide financial aid to hospitals to recruit abortion providers, engage in public education to reduce abortion stigma, implement buffer zones and various security measures to support doctors, and other initiatives.

Over time, such measures should reduce or eliminate the presence of doctors who refuse to deliver health care for which they would normally be responsible. 

Finally, it is crucial to point out that Sweden, Finland, and Iceland already do not allow CO – either it’s generally prohibited, or in the case of Iceland there’s so few objectors that requiring Ob/Gyns to participate in abortion care has not posed any problems. The assumption that CO is legitimate and must be allowed disregards the proven reality that it is indeed possible to disallow CO without any negative impacts on providers. They simply find other jobs or disciplines to work in, and they can be assisted (and even recompensed) to do so.

One might argue that these Nordic countries are a unique and unrepresentative case because they have high degrees of secularism and gender equality, and less abortion stigma. But isn’t that exactly the point? A strong commitment to secularism and gender equality makes CO unnecessary and even unthinkable, as it should be. And that’s really what our end goal should be – not trying to accommodate the ongoing oppression and stigmatization of women under the guise of “conscience.” CO is simply an ideological retaliation against laws that empower women, and it comes mainly from fundamentalist religion. It should not be defended or tolerated. 

(The End)

My previous articles on “conscientious objection”:

‘Dishonourable Disobedience’: Why Refusal to Treat in Reproductive Healthcare Is Not Conscientious Objection. Christian Fiala and Joyce H. Arthur. Woman - Psychosomatic Gynaecology and Obstetrics. December 2014 (first published online March 2014).

Synopsis: A comprehensive paper that uniquely delves into the underlying premises of CO to show that it is fundamentally contradictory and unworkable, and has nothing in common with the military CO from which it is supposedly derived. Current laws and practices in various countries around CO in reproductive health care show that it is frequently abused, with harmful impacts on women's health care and rights. CO in reproductive health is not actually Conscientious Objection, but Dishonourable Disobedience (DD) to laws and ethical codes. It should be dealt with like any other failure to perform one's professional duty, through enforcement and disciplinary measures.

Why We Need to Ban ‘Conscientious Objection’ in Reproductive Health Care. Joyce Arthur and Christian Fiala. RH Reality Check. May 14, 2014.

Synopsis: A criticism of the global consensus by secular medical and health organizations and human rights bodies that “conscientious objection” is a legitimate right of physicians. All such groups that accept CO simply assume without question that health care providers have a right to CO, while they contradictorily often devote considerable discussion and resources to documenting and trying to limit the systemic harms caused by the exercise of CO. Not a single statement, article, report, or study by any group that supports CO can cite any benefits of CO in health care, other than supposedly respecting clinicians’ “right” of conscience. But all groups fail to see that the term “conscientious objection” as applied to refusals of reproductive health care is fraudulent, and not true CO.

The CO debate: ‘Conscientious Objection’ is still dishonourable disobedience, Joyce Arthur and Christian Fiala. Bpas Reproductive Review. July 14, 2014.

Synopsis: A response to our critics, including Global Doctors for Choice. We paraphrase and respond to eight criticisms, most of which we feel ignored or misunderstood our position.

Synopsis:  Policies and practice around “conscientious objection” in reproductive health care in Canada, and a summary of the “Dishonourable Disobedience” paper by Joyce Arthur and Christian Fiala to show what’s wrong with CO.

Synopsis:  A critique of anti-choice views on “conscientious objection”, including in particular the views of the Christian Medical and Dental Society of Canada, which is suing the College of Physicians and Surgeons of Ontario for enacting a policy requiring objecting doctors to refer patients to someone who can provide the services.

Submission #1 to the College of Physicians and Surgeons of Ontario (see No. 731). Joyce Arthur and Christian Fiala. July 31, 2014.

Synopsis: We ask the Ontario College to amend its policy to prohibit or at least strongly discourage the practice of conscientious objection for contraception and abortion services in particular. We also ask the College to implement monitoring and enforcement against those who disobey CO regulations, including disciplinary measures and financial and legal liability for any patient harms. We provide arguments against allowing any degree of CO in reproductive health care, on the basis that it is not genuine CO, is a violation of medical ethics and patients’ right to health care, and is discrimination on the basis of sex. We also provide arguments against the typical compromise that requires doctors to refer appropriately, because it is contradictory, unfeasible, and systematically abused.

Synopsis:  The College’s new draft policy requires objecting doctors to make an “effective referral” to someone who can provide the service. I draw attention to the negative anti-choice reaction to this and the likelihood that most anti-choice doctors will flout the policy because they think referring makes them “complicit.” I urge the College to implement various suggested monitoring and enforcement measures, and to make the patient complaint process more accessible and confidential.

Synopsis: I critique the College’s draft "Conscientious Refusal" policy with similar arguments as in the above submissions to the Ontario College. (While the latter stuck to its “effective referral” policy, the Sask. College caved to anti-choice pressure and weakened its policy so that doctors only need to “make an arrangement” for the patient to see someone who can refer them to someone who can provide the service.)

Yes We Can!  Successful Examples of Disallowing ‘Conscientious Objection’ in Reproductive Health Care. By Christian Fiala, Kristina Gemzell Danielsson, Oskari Heikinheimo, Jens A. Guðmundsson, and Joyce Arthur. Feb 2015. European Journal of Contraception & Reproductive Health Care.  DOI: 10.3109/13625187.2016.1138458.

Synopsis: Three countries – Sweden, Finland, and Iceland – do not generally permit health care professionals in the public health care system to refuse to perform a legal medical service for reasons of CO when the service is part of their professional duties. We investigate the laws and experiences of these countries to show that disallowing CO is not only workable but beneficial for all involved.

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  • At 9:11 PM, Blogger alfonso said…

    Bioethicists and activists liberals even suggest that patients suffering from BIID (body-integrity identity disorder), a sick compulsion to become an amputee , should be treated by having healthy limbs removed, just as transgenders today receive surgical sexual mutilation.
    The ongoing transformation in the methods and ethics of medicine raises profound moral questions for oath that proscribe abortion and assisted suicide and compel physicians to do no poisoned people. There has always been jobs that, despite being legal, shameful and wrong were clearly viewed by society. It was the case of the executioners or slave traders. Were necessary and legal in slave societies or the death penalty, but they knew that their work was "exemplary" and that they were not welcome in their societies. They were a marginal caste. In our time, abortion doctors are in a similar situation. How to sell a society that abortion is a standard medical treatment if there are legions of doctors, social workers, nurses, anesthesiologists and gynecologists who refuse to do? Abortionists you afraid of the objection and of being further cornered in their social ghetto, which gives money but little prestige. Naturally, conscientious objection is a sacred right, the Supreme Court recognized in 1943 that Jehovah's Witnesses could not be compelled to pledge the flag or perform military service. Idem with abortion. Dr. Henry Morgentaler, who in addition to defending the right to object adds: "In addition, a doctor who does not believe what he does is more likely than not do a good job." (P. J. Ginés. Wesley J. Smith notes that "the term designates consumerist medicine interventions using traditional methods and tools of medicine (surgery, medicine, technology) not to treat real diseases, but to satisfy personal desires of patients, consolidate their lifestyles or help them achieve their goals unrelated to health. "

  • At 9:24 PM, Blogger alfonso said…

    The problem of unregulated conscientious objection vía @consciencepro

  • At 7:50 AM, Blogger choice joyce said…

    Alfonso, I’m publishing your comment to illustrate the issues that occur when right-wing people try to persuade liberal activists. You have a set point of view that is not amenable to change or new thinking, as evidenced by the fact that you didn’t even read my blog piece, or any of my other articles listed at the bottom. I know this because I’ve already addressed and refuted most of your points - often very comprehensively, yet you are completely unaware of this.

    A few other points you make are strawmen, i.e., positions I don’t hold, and even 1 or 2 that I agree with you on. E.g., you start out with the claim that some liberal activists think that doctors should follow the wishes of a physically-healthy patient to have a limb amputated. But I specifically use this as an example where CO should indeed be allowed, and I explain why.

    It’s discourteous and unfair to just parachute into a blog and post your views and arguments without even reading the blog first. If you’re actually interested in this issue and want to argue against liberal positions on it, you have an obligation to read and understand what’s being said first. My views are not even that typical; I have a different approach in many respects, and some original arguments. But you completely missed all of that because you didn’t even bother to read what I wrote.

    The only thing I need to respond to is this: I’ve written on the Hippocratic Oath before, to explain how it is an archaic pagan document, mostly no longer used even in its modern form, and does not actually mean what you and other conservatives think it means. So you cannot use the Oath as an argument against providing abortion, or even doctor-assisted suicide.


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